This opinion will be unpublished and
                  may not be cited except as provided by
               Minn. Stat. § 480A.08, subd. 3 (1994)

                          State of Minnesota
                            in Court of Appeals

     Scott Raymond Gusk,


Darrel Duane Spencer,



Farm Bureau Mutual Insurance Company,

Filed June 25, 1996
Peterson, Judge

Chisago County District Court

File No. C593886

Douglas G. Sauter, Douglas G. Sauter & Associates, P.A., Northtown Business
Center, 199 Coon Rapids Boulevard, Suite 108, Coon Rapids, MN 55433 (for

Robert H. Tennant, Bell & Tennant, 400 Executive Office Center, 2785 White
Bear Avenue North, St. Paul, MN 55109 (for Plaintiff)

Owen L. Sorenson, Suzanne Wolbeck Kvas, Stringer & Rohleder, Ltd., 55 East
Fifth Street, Suite 1200, St. Paul, MN 55101 (for Appellant)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and
Amundson, Judge.
                        Unpublished Opinion

PETERSON, Judge (Hon. Linn Slattengren, District Court Trial Judge)

Appellant Farm Bureau Mutual Insurance Co. argues that the trial court
erred by requiring it to pay uninsured motorist benefits to respondent
Scott Raymond Gusk. We affirm.

While Gusk was riding his bicycle along a highway, an unidentified car
nearly collided with him and caused him to lose control of his bike.
Another car, driven by Darrel Spencer, then collided with Gusk, resulting
in serious injuries to Gusk.

Gusk sued Spencer and his own insurer, Farm Bureau Mutual Insurance
Company, which provided both underinsured and uninsured motorist
        [Footnote] (1)An unidentified vehicle is considered
        an uninsured vehicle under Gusk's insurance policy.

Allstate Insurance Company, Spencer's insurer, reached a tentative
settlement with Gusk for $80,000 of Spencer's $100,000 policy limit. Gusk
then notified Farm Bureau of the tentative settlement in accordance with
Schmidt v. Clothier, 338 N.W.2d 256, 263 (Minn. 1983). Pursuant to
Schmidt, Farm Bureau substituted its own draft, thereby protecting
its subrogation rights against Spencer and his insurer.

The case went to trial in February 1995. By special verdict, the jury found
total damages to be $122,190.10 and apportioned fault 50% to the
unidentifed driver, 30% to Spencer, and 20% to Gusk. After deducting no-
fault benefits received and Gusk's share of the liability, Gusk was awarded
$74,462.72 in damages and pre-judgment interest.

Farm Bureau moved the court for JNOV or a new trial. The court denied Farm
Bureau's motion and ordered that judgment be entered against Farm Bureau
for $60,584.10, the amount of damages attributable to the unknown driver,
plus costs and disbursements.

As the carrier for both underinsured and uninsured motorist coverages, Farm
Bureau was responsible for paying damages that Gusk was legally entitled to
recover from two separate tortfeasors, Spencer and the driver of the
unidentified vehicle. By substituting its draft pursuant to Schmidt,
Farm Bureau preserved its subrogation rights with respect to the damages
Gusk was legally entitled to recover from Spencer.

The outcome of the trial revealed that the amount Farm Bureau paid to
preserve its subrogation rights with respect to underinsured benefits was
greater than the total damages Gusk was entitled to recover from both
tortfeasors. Farm Bureau argues that ``[b]ecause the available liability
coverage sufficiently compensated Gusk, there should have been no
additional judgment entered against Farm Bureau.'' Farm Bureau claims that
requiring it to pay Gusk uninsured motorist benefits will allow Gusk to
receive an impermissible double recovery because Farm Bureau has already
paid him an amount that exceeds the total damages awarded. We disagree.

Farm Bureau's argument ignores the fact that the $80,000 payment it made
was related only to damages Gusk was legally entitled to recover from
Spencer. The uninsured motorist coverage Farm Bureau provided was related
only to damages Gusk was legally entitled to recover from the unidentified
driver. In effect, Farm Bureau argues that it should be permitted to meet
its obligations as an uninsured motorist carrier through the payment it
made to preserve the subrogation rights it possesses as an underinsured
motorist carrier.

The total amount Gusk will receive simply reflects the uninsured motorist
benefits to which he is entitled under his contract with Farm Bureau and
the proceeds of what ultimately proved to be a favorable settlement
negotiated with Spencer. While it is true that Gusk will receive payments
that exceed the total amount of damages the jury determined he suffered,
the amount he will receive is not an impermissible double recovery. As the
supreme court has explained,
        [u]nder established tort law, this kind of
        ``overpayment'' is not the kind of double recovery
        of which a cotortfeasor can complain. Shantz v.
        Richview, Inc., 311 N.W.2d 155, 156 (Minn. 1981)
        (``It should be no concern of the nonsettling
        defendant how much the plaintiff received from the
        settling defendant.'')

State Farm Mut. Auto. Ins. Co. v. Galloway, 373 N.W.2d 301, 305
(Minn. 1985).

Farm Bureau simply misjudged the amount it needed to pay to preserve its
subrogation rights. As things turned out, Spencer was not underinsured, and
Farm Bureau would have had no obligation to pay underinsured motorist

Had the driver of the unidentified car been available to respond to Gusk's
claims, it would be no concern of that driver how much Farm Bureau paid to
preserve its subrogation rights. The payment made by Farm Bureau to
preserve its subrogation rights would not have been used to pay damages
that Gusk was legally entitled to recover from the unidentified driver. The
fact that the driver remains unknown does not change this result.
        [U]ninsured motorist benefits should be administered
        in a way that does not leave the insured in a
        position which is less advantageous than if the
        uninsured motorist had been insured.

Id. at 306.